Advocate Cannot Be Summoned As Witness And Be Compelled To Disclose Confidential Information Against Client : Kerala HC

The Kerala High Court observed that police's power provided under Section 179(1) of BNSS cannot be stretched to call for an advocate–who is appearing for the accused in the crime–so as to divulge information shared between him and the client. In doing so it observed that summoning an advocate representing his client potentially infringes the "client's right to representation and also violates the constitutional rights of the legal practitioners" besides impinging upon the stature of an advocate. It further observed that police has "absolutely no authority to issue notice under Section 35(3) of BNSS" to an accused's advocate, summoning him for the purpose of an investigation involving his client. "Nor does the police have any power to summon an advocate to disclose privileged client communication", the court also underscored. The observation came in a case where an advocate of the accused was served with a notice under Section 35(3) of BNSS calling upon him to appear before the investigating officer, in an investigation involving the accused. At the outset Justice Kauser Edappagath in his order observed remarked that the present case depicted a "strange procedure unheard of in criminal investigation". “While the police can issue a summons to a suspect or witness, they cannot summon an advocate to the police station in his professional capacity. The power of the police under Section 179(1) of BNSS cannot be stretched to call for an advocate who is appearing for the accused in the crime to divulge information between him and the client. Summoning an advocate representing his client potentially infringes the client's right to represent and violates the constitutional rights of the legal practitioners besides impinging upon the stature of an advocate.”Advocate can't be compelled to disclose privileged client communicationThe Court further observed that the notice issued by the police in this case to the lawyer, was in a way asking the petitioner lawyer to be present before the police to be interrogated regarding any information that he may have, which has been communicated between him and his client, in professional capacity. The court thus underscored that this is "privileged communication" under Section 132(1) of BSA and an advocate cannot be compelled to disclose that. “No advocate can be compelled to disclose any communication made to him by his client in the course of their professional relationship under Section 132(1) of BSA. The said provision protects the confidentiality of communication between an advocate and his client.The petitioner, as an advocate, has the right not to participate in the proceedings where he should divulge any communication which he had made with his client in the course of defending his client.”BackgroundThe petitioner, an advocate represented a husband and wife who were booked under Sections 336(2) and 340(2) of the BNS and Section 14, 14(b), 14(c) of the Foreigners Act It was alleged that they were Bangladeshi national and had no documents to prove their citizenship and forged their id cards namely Aadhar Card, Election ID and Driving License. The petitioner filed a bail application for his clients before the Magistrate Court which was subsequently dismissed.As per the petitioner, a notice was issued against him by the Sub-Inspector of the police under Section 94 of BNSS to produce the accused person's documents before the police station. The next day, the advocate produced the documents including the original ID cards of the accused before the court. After that, he sent a reply to the notice sent by the police saying that he has produced all the documents before the court. Subsequently, he received a notice under Section 35(3) of BNSS from the Sub Inspector of Njarakkal Police Station requiring him to appear before the police station for questioning. It was mentioned in the notice that the petitioner will be arrested if he fails to appear before the police. Against this notice, the petitioner approached the High Court. The petitioner stated that the notice was sent to him as a retaliatory measure as his client had complained before the Magistrate against the Sub-Inspector alleging custodial torture.After the Court orally reprimanded the Sub-Inspector questioning his authority to issue such a notice in the earlier hearing, the Sub-Inspector withdrew the Section 35(3) notice.The Court in its judgment observed that it appears that they were trying to involve the petitioner in the investigation of the crime by sending the notice. The Court said that it appears that the police wanted to allege that the petitioner has been instrumental in making the fake documents without having any material fact against him. It thereafter said that the action on the part of the police in issuing the notice under Section 35(3) is an infringement of the petitioner's right to practice the profession as envisaged in the Advocates Act and Article 19(1)(g) of the Constitution of India; the court thus held ...

Advocate Cannot Be Summoned As Witness And Be Compelled To Disclose Confidential Information Against Client : Kerala HC

Manju Elsa Isac

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